Summary

Facts

The facts are as set out in the first instance decision of Tugendhat J [2013] EWHC 3177 (QB). The Claimant Appellant (A) was refused his application for a privacy injunction against the Respondent Defendant newspaper (R). Tugendhat J thought it unlikely that the Appellant could succeed at any future trial. He concluded that there was a sufficient general public interest in publishing a report of court proceedings which identified C, and any normally reportable details of those proceedings, to justify any resulting curtailment of his right and his family’s right to respect for their private life. C appealed against the refusal of the privacy injunction.

Issue

Had the judge erred in refusing the privacy injunction? In particular, did he:

(1) wrongly adopt the approach that the case was principally about the open justice principle as a result of non-binding assurances from R about what they intended to publish; and

(2) take too narrow an approach to the Article 8 rights engaged in the case even though A was not himself a party to the criminal trial?

Held

Dismissing the appeal:

(1) The open justice principle was engaged and the judge rightly proceeded on the basis that it was an important element, but not the only one that needed to be considered in determining the application. The judge was entitled to accept R’s assurance that they intended to publish a fair and accurate report of the criminal trial and no more.

R’s right to report proceedings was not fatally compromised by the risk of any report leading to other stories about A with dire consequences for him and his family. The Supreme Court had rejected a similar argument to that raised by A in In re Guardian News and Media Ltd[2010] UKSC 1; [2010] 2 AC 697. The law proceeds on the basis that the public understands that you are innocent until proven guilty. The seriousness of the allegation in In re Guardian, and here also, did not place the case in an exceptional category. The judge was entitled to regard the element of risk as one factor to be taken into account when considering the proportionality of the anonymity order.

(2) A’s argument relating to the extent to which the presumption of innocence, which he was entitled to rely on in defence of his article 8 rights, overrode the public interest considerations the principle of open justice gives rise to was not accepted. The approach to the open justice principle has been settled at the highest level, in In re S and In re Guardian. Once it is understood that most members of the public understand the presumption of innocence, it follows that the effect of disclosing the fact of the appellant’s arrest on his article 8 rights is more limited than A contended.

This approach has not been modified by the decision of the Supreme Court in A v BBC (Scotland) [2014] UKSC 25; [2014] 2 All ER 1037. Canadian cases were of limited assistance in resolving the issues the court had to consider. And recent material on whether the police should publish the name of someone who has simply been arrested, while it provides some support for the proposition that there should be more careful consideration of such a person’s rights than there has been in the past, did not apply. The fact of A’s arrest and other information had been extensively referred to in open court.

The judge had not failed to have full regard to the effect of the disclosure of the appellant’s identity on the children, given what had been said about the particular weight to be accorded to those rights in applications of this kind by Ward LJ in K v News Group Newspapers Ltd. He was entitled to come to the view that on the evidence before him giving particular weight to the children’s evidence would have made no difference.

(3) The judge’s task was evaluative, akin to the exercise of a discretion and the court would not interfere unless the judge erred in principle or reached a conclusion that was plainly wrong. The judge reached a conclusion he was entitled to on the facts.

The judgment remained anonymised and the s4(2) order in place until A’s application for permission to appeal to the Supreme Court had been determined. If this was not pursued or was unsuccessful, the s4(2) orders were to be lifted and A’s full name substituted for PNM.

Comment

It was significant that, as well as A being arrested during the course of the police’s investigation, his name had been read out in open court, and the fact of his arrest and associated information had been referred to. The appeal therefore amounted to an attempt to challenge what are now very well established principles on open justice and the reporting of criminal trials.

The judge at first instance recognised the risks to him and his family that A’s identification in the context of a criminal trial of such serious offences gives rise to. Those in A’s situation undoubtedly find themselves in a difficult position, and the judgment acknowledges developments in the approach to the identification of someone who has simply been arrested. But the application of the open justice principle leaves very little room for the identification of exceptional categories of case which fall outside it.

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